Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. Continue reading →

I’m rarely moved to criticize the work of other commentators because, even when I don’t share their views, I applaud the airing of the issues their efforts bring.  But sometimes a proposition is just so blatantly ill-advised, so prone to unfairly tilt the litigation playing field, that any reader and every writer should stop and say, “Wait a second….”  One such article, currently running in the New York Law Journal and called No Disclosure: Why Search Terms Are Worthy of Court’s Protection, charges that judges who require disclosure of search terms “discount or misunderstand” what the authors term the “protected nature of key aspects of the e-discovery process,” namely filtering of data by use of search terms.  The authors think that disclosure of search terms used to exclude data from disclosure compromises the work product privilege and argue that judges should “recognize that a search term is more than a collection of words, rather, the culmination of an attorney’s interaction with the facts of the case.”

Espousing the sanctity of work product privilege to an audience of litigators is like saying, “I support our troops.”  It’s mom, baseball and apple pie.  It’s also popular to paint judges as addled abusers of discretion.  But let’s not let jingoism displace judgment.  Search terms are precisely what the authors claim they are not: search terms are a collection of words.  They are lexical filters.  Nothing more.

Search terms deserve no more protection from disclosure than date ranges, file types and other mechanical means employed to exclude data from scrutiny.  Search terms strip out information that will never see the light of day nor benefit from the application of lawyer judgment as to their relevance.  In that sense, search terms are anathema to the core principles of work product and warrant more, not less, scrutiny. Continue reading →